The Legality of Promoting Inclusiveness: May the University of California Use Race or Ethnicity as Factors in Applicant Outreach?

UCLA Chicana/o Latina/o Law Review, Forthcoming

UC Berkeley Public Law Research Paper No. 1239242

32 Pages Posted: 20 Aug 2008 Last revised: 7 Sep 2008

See all articles by David B. Oppenheimer

David B. Oppenheimer

University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Abstract

In 1996 the voters of California adopted Proposition 209, amending the state Constitution to add Article 1, section 31: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

This essay addresses whether this prohibition of discrimination and preferential treatment bars the University of California from using race or ethnicity as factors in its outreach programs designed to recruit applicants, and whether the University needs to consider race in its outreach efforts to avoid discriminating against potential minority candidates. I will review the disputes over the meaning of section 31, and particularly the term "preferential treatment," during the Proposition 209 campaign, and after it was adopted by the voters. I will conclude that a ban on "preferential treatment" based on race and ethnicity does not prohibit all considerations of race and ethnicity in university outreach programs. I will then discuss an important justification for using race and ethnicity in recruiting applicants suggested by the California Supreme Court's reasoning in its interpretation of the initiative - as an affirmative anti-discrimination program. I will conclude that the University may, and arguably must, use race and ethnicity in its outreach programs to reach minority applicants who otherwise might not apply. As long as the program is broadly designed to also reach other potential applicants, regardless of their race or ethnicity, it will not violate section 31. Without using race and ethnicity in its outreach programs, the University may find that it cannot avoid discriminating against potential minority applicants.

Keywords: law, education law, discrimination, equality, affirmative action, Proposition 209

Suggested Citation

Oppenheimer, David B., The Legality of Promoting Inclusiveness: May the University of California Use Race or Ethnicity as Factors in Applicant Outreach?. UCLA Chicana/o Latina/o Law Review, Forthcoming; UC Berkeley Public Law Research Paper No. 1239242. Available at SSRN: https://ssrn.com/abstract=1239242

David B. Oppenheimer (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
5106433225 (Phone)

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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